A group of Democratic state lawmakers is hoping to make it easier for their employees to unionize, even as an attorney for the Legislature argues such a move could be problematic in the Capitol.

In a bill slated to be introduced in the Senate in the coming days, 29 Democrats are proposing a tweak to the state’s policy governing public-sector unions, the Public Employee Collective Bargaining Act, or PECBA.

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The relatively simple bill would ensure that the Capitol’s legislative administrator, Brett Hanes, is the person responsible for bargaining with an employee union if one emerges. But while that change would resolve one objection aides have faced in an ongoing organizing effort, it’s far from certain it would clear their path.

State Sen. Michael Dembrow, D-Portland, speaks on the Senate floor at the Capitol in Salem, Ore., Thursday, April 11, 2019.

State Sen. Michael Dembrow, D-Portland, is a chief proponent of a bill to clarify that Capitol aides can unionize.

Bradley W. Parks / OPB

As legislative lawyers helped to draft the new bill, SB 759, another attorney who represents the Legislature has repeatedly argued an employee union is “fundamentally incompatible” with the work lawmakers do.

That attorney, Department of Justice lawyer Tessa Sugahara, filed eight pages of objections to the union push with the state’s Employment Relations Board last week.

One of those arguments includes a contention that it’s unclear who would rightly bargain with employees on behalf of the 90 elected officials who make up the Legislature — a sticking point SB 759 could eventually resolve. The proposal to hand that duty to the state’s legislative administrator in some ways mirrors a step lawmakers took in 1983, when they clarified that the chief justice of the Oregon Supreme Court has authority to bargain with judicial branch employees who unionize.

But the arguments against a staff union go much further, seeking to undermine PECBA as an applicable law when it comes to the Legislature and cast doubt on employees’ ability to organize under the law.

“The collective bargaining policy objectives of the PECBA are irreconcilable with the policy objectives of the Oregon Legislative Assembly,” Sugahara wrote. She added: “Legislative Branch employees are exempt from, and generally not subject to, the State Personnel Relations Law.”

Another argument: Because there’s a great deal of leeway in the responsibilities lawmakers give their aides, the state says many may have supervisory or confidential roles that preclude union membership, making the actual size of a potential bargaining unit hazy.

The Legislature also argues that, since aides for different lawmakers are often diametrically opposed in the policies they’re working toward, they cannot meet the definition of a “community of interest” required under the law. And the state notes that many lawmakers employ family members in their offices, a dynamic unlike any other state labor arrangements.

“This situation raises both conflict and loyalty considerations that the PECBA policy did not anticipate,” Sugahara wrote.

Despite these arguments carried out in their name, the strong backing of SB 759 suggests plenty of lawmakers are supportive of a staff union. The bill was the brainchild of state Sen. Michael Dembrow, D-Portland, and includes Rep. Marty Wilde, D-Eugene, Sen. Chris Gorsek, D-Troutdale, as its co-chief sponsors. No Republican lawmakers have signed onto the effort so far, Dembrow said.

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While he said he could not discuss Capitol aides’ attempt to unionize, Wilde said Thursday he signed onto the bill after seeing some of the arguments “that were filed, technically, on my behalf along with everybody else” against the effort. He and other lawmakers agreed it didn’t make sense that state law doesn’t explicitly acknowledge that employees of the legislative branch could organize like other public workers.

“The vast majority of executive branch employees are unionized,” Wilde said, referring to workers in most state agencies. “The bill provides the same opportunity as other branch employees.”

Legislative leaders have also seemed at odds with arguments filed in their names. House Speaker Tina Kotek, D-Portland, and Senate President Peter Courtney, D-Salem, have both touted their own pro-labor records when questioned about the Legislature’s formal objections to the union push by staff.

Asked about that disconnect on Monday, Kotek suggested that the filings are just a way for lawmakers to have their legal questions addressed, not an attempt to stymie a union.

“They are defined as objections and that is because that’s what they’re called,” Kotek said. “I like to think of them more as clarifying questions. That’s how I look at it.”

While it’s offered many reasons why a union should not be allowed, the Legislature appears to have backed off what might have been a potent argument against staffers organizing.

Late last year, the state argued that allowing legislative aides to unionize would be unconstitutional. It reasoned that, since such a union would be enshrined by the state’s executive branch, the arrangement would amount to one branch of government telling another what to do, and thus violate the separation of powers clause in the Oregon Constitution.

“Nationwide, counsel for the Employer is unaware of any administrative or judicial branch rendering a constitutionally valid recognition of a bargaining unit within the legislative branch,” Sugahara wrote at the time. A similar argument ended a push by capitol staffers in Delaware to organize last year.

But things have changed since the state raised the constitutionality issue. Employees seeking the union have amended their petition to be recognized, following changes to staff classifications and other details that weren’t addressed when they first filed.

The new petition effectively restarted the process, meaning that Sugahara got another shot at objecting to a union. And in her latest filing, she did not raise separation of powers as a concern.

Legislative aides and other employees that would be covered by a new union are at the heart of smooth operations in the Capitol. They interact with constituents, help prepare lawmakers for hearings, arrange meetings and schedules and much more.

Aides have talked quietly for years about unionizing, people behind the push say. But the effort took on new momentum in 2020, following changes to Capitol policies around pay and harassment policies, among other reasons.

Staffers selected the International Brotherhood of Electrical Workers Local 89 to represent them, in part because the union doesn’t actively lobby in state politics. In their most recent petition, the employees propose a bargaining unit of 180 people.

For that petition to qualify for recognition, at least 54 staffers in the proposed unit would have had to sign on. If it gets past the DOJ’s objections, the matter would then go to a vote of all 180 prospective union members.

The exact number of aides who signed onto the petition is not a matter of public record, nor are their party affiliations. Backers of the effort and IBEW Local 89 have insisted employees for lawmakers in both major parties support the effort.

One twist to SB 759: It’s unlikely to be of use to capitol aides in their current effort. A hearing before an administrative law judge to discuss the state’s objections is set to begin Feb. 25, well before the bill would be able to pass, let alone take effect.

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